THE LIBEL CASE.

Lyttelton Times, Volume LXV, Issue 7831, 10 April 1886, Page 5

THE LIBEL CASE.

DECISION AS TO COSTS. pßr TelegbaphJ [feom otjb special cohbesfondent.] DTWEDIN, Apkil 9. In Chambers this morning, before Mr Justice Williams, a motion for the payment of the plaintiff's costs in the recent libel action, Stewart v. Roydhouse and another, wherein the jury found for the plaintiff with Is damages, was argued. Mr Fitchetfc appeared for the plaintiff; Mr Sims (of Messrs Sievwright and Stout's office) rbr the defendants, Messrs Wakefield and Eoydhouse. His Honor: I understand you ask for costs, Mr Fitchett. Whether costs should be given or not depends on the new system. Mr Fitchett: It has been f uggested that it depended on the order made in Christchurch unless the verdict itself gave us costs after the verdict was given. Mr Wilding suggested that it. depended on the judgment, but as the hour was so late it was arranged that the matter should stand over. * His Honor : Undoubtedly that was so. Mr Pitchett: I now ask your Honor to certify for costs under Eule 522. Mr Sims has given me to understand that he intends to object, on the ground that the Judge's jurisdiction was limited to the trial. His Honor: There was a distinct agreement. Ifc was the same under the old system. Mr Sims : I was not present at the trial, and do not know what was done there. His Honor: There is no doubt about that. The question of costs was to stand over by consent, and the Registrar took a note of it by my instructions. The costs were certainly asked for, and by consent the question stood over. Mr Pitehett, in asking His Honor to certify, would direct his attention to one or two English case 3 dealing with cases of this kind. Their purport was that the Judge, in certifying, was guided by the whole circumstances of the case, by the action of the plaintiff, by his conduct, and by the conduct of the defendants. Mr Sims : The English rule is that the costs follow the event, unless the Judge otherwise orders. Mr Pitchett: It is virtually the same as our rule. That rule was framed for the purpose of preventing trumpery actions being brought. His Honor: It is substantially the same as the rule of 1876, which it superseded. Mr Pitchett: Which said that a plaintiff is entitled to his costs, unless the Judge shall certify that the action was not a reasonable one to have brought. His Honor: This seems to give a wider discretion.

Mr Fitchett, after reading Bule 522, contended that, in the present instance, the plaintiff had substantially succeeded, and that, unless the circumstances involved blame on him, he would be entitled to his costs. If. His Honor would consider the nature of the action and the nature of the libel—

His Honor: I am quite aware of the facts. (Laughter.) Mr Fitchett went on to say that a more cold-blooded libel was never raised. He was not going over the evidence in detail, but he would ask His Honor to notice the epithets with which the libel was crammed, and the circumstantiality with which the whole thing was brought out. There was a charge of want of skill, and it was suggested that he had been guilty of perjury in order to ward off the consequences of his action. The article was of so atrocious a character that he could not have attempted to continue the practice of his profession if he had not taken proceedings against the defendants. _ No man more utterly depended on the maintenance of his good repute than a doctor. A doctor who had imputed to him such charges as were imputed to Dr Stewart in this article might as well shut up his surgery till the charges were refuted. There was the defendant, Wakefield's, evidence as to how it was he came to write the libel. He had only half an hour's conversation with Dr Nedwill. He did not take any note 3 and he did not take the slightest steps to substantiate anything that Dr Nedwill had stated, though he knew Dr Nedwill was virtually the prosecutor. This, he submitted, amounted to wantonness and more than negligence, and a libel under Buch circumstances could not be justified on the ground of fair comment. Then ther» was this fact, more significant than any thing else, that Mr Wakefield said he believed what he had been told to be trne, bat when asked about it he said he did not

feel called on to make farther enquiries as to the truth or o&erwise of the statements in the letter, but reiterated his charges in a second; article;, calling them indisputable facts, and saying that there was an attempt to gag the pen, wherefore he was determined to stick to his facts. There was not the slightest warrant for the accusations made, and it was inexplicable how the jury had arrived at a verdict of Is damages. He contended that before the Court could say that the plaintiff was disentitled to his costs it would have to say that it was a trumpery action, which should not have been brought. In determining that His Honor would have to consider the conduct and character of plaintiff, the extent to which the libel had been circulated (remembering Mr Wakefield's boast in his second article that the first article was reprinted by every leading paper in the Colony), and for that reason the defendants, having justified, the plaintiff had been put to very considerable expense in refuting that plea. As His Honor knew, where a person justified, and failed to establish that plea of justification, the Courts regarded it as an aggravation of the libel. During the trial the AttorneyGeneral had entirely abandoned the plea of justification, and relied solely on the article being fair comment. As to the magnitude of the trial, he had been at the trouble of counting the number of witnesses, and found that the plaintiff called 18 and the defendants 10. A material element that would have to be considered by His Honor was the nature of the facts that had to be proved, and the difficult and technical nature of what the plaintiff had to prove. He would refer His Honor to one or two cases dealing with the matter. First, there was the New South Wales case of Moore v. Haynes, 2 N.S.W. Reports, p. 350. This was a case in which the plaintiff, the owner of the Clontarf pleasure gardens in Sydney, sued a newspaper for JJSOOO damages, for libel. The paper had alleged that improper conduct was carried on in the gardens, and the jury found for plaintiff for one farthing. The trial lasted eight or ten days, and the Court decided that the plaintiff was entitled to his coßts. Then, in Hartnell v. Vyse, Law Reports "5, ex div. 307, it was held that the Judge, in deciding the question of costs, had to consider the whole of the circumstances. In Sampson v. Mackay, Queen's Bench Reports, the plaintiff recovered .£lO, but the Judge took away his costs because of the frivolity of the action. It would be found in many cases that actions were of a trumpery character, or plaintiffs themselves put the matter out of Court by reason of misconduct.

Mr Sims submitted that this was not a proper case for allowing costs. The whole of his friend's argument amounted to this —that the verdict of one shilling was too small. If this were a motion for a new trial, that would be a proper argument; 1 but he submitted that it should have no weight in the present application. His Honor, in dealing with this application, ought not to go over the whole of the facts, ought not, in short, to re-try the case. His Honor was now being asked to supplement the.jury's verdict by giving the plaintiff costs. Under this order the plaintiff was not entitled to the costs he would be entitled to if he had recovered substantial damages. In dealing with an application of this kind the direction of the Court waß only a reasonable one, and it should not be exercised, because the Court was not satisfied with the verdict. The parties had had a fair trial, and the jury had assessed at one shilling the damage the plaintiff had sustained. If the plaintiff was not satisfied with that verdict, let him move for a new trial, on the ground 4 that tthe damages were too small. In.su|iport of his contention that that in which applications of this be dealt with, he referred His Hjiibrsfco the judgment of the Master of the Ejps in Cooper v. Whittingham (Law Beporf|. 15, Chancery Division, page 501). So, in'the present case, he, submitted that unless the defendants had been guilty of some misconduct in the action, they should not be saddled with the costs. It could not be said for a moment that the defendants had been guilty of any misconduct; on the contrary, the jury had recommended that there should be a searching enquiry into the management of the Christchurch Hospital, clearly showing that though the article might have exceeded the bounds of fairness, the jury found that the plaintiff had been damaged by reason of that excess to the extent of Is and no more. He also referred His Honor to the case of Barclay v. Bourne, heard at Christchurch in April last, in which Mr Justice Johnston, acting on the distinct intimation of the jury, gave the plaintiff his costs, but His Honor there was clearly of opinion that in special circumstances, such as existed in this case, a defendant should not be saddled with coßts where the verdict was for one shilling damages. His Honor said : I shall not trouble you, Mr Fitcbett, to reply. Eule 522 gives the Judge a wide discretion as to whether or not costs should be allowed, where a verdict under 40s has been obtained by the plaintiff. If a verdict under 40s has been obtained by a plaintiff, the effect of it is to put on the plaintiff the burden of satisfying the Judge that the case is one in which costs ought to be granted. In order to ascertain whether it is so or not, the Judge is, of course, bound to look at the pleadings, and the whole circumstances of the case. I also think that the Judge is bound to look specially aa to whether the action was one which it was reasonable for plaintiff to have brought. In the present case there are two very, good reasons why costs should be allowed to plaintiff. The first is that, looking at the position of the plaintiff, and at the nature of the libel, the action was one which the plaintiff, as a professional man, believing himself to be innocent of the charges brought against him, could not avoid bringing. It was almost a duty on him to bring the action. Had this applition been made under the old rule of Dec. 3, 1875, I should certainly have decided that it came within the very words of that rule, viz., " That it was reasonable that such an action should have been brought." There is another reason for allowing costs, and that is, that defendants have justified on the ground that the libel is true, and have failed to prove their justification. Now, it seems to me to be a very good general rule to lay down, that in cases of libel where a defendant justifies on the grounds of truth, and fails to prove his justification, the plaintiff, however small the amount of damages he may recover, ought to get his costs. It may be that this rule would be open like all other , rules to exception, but the graver the charges contained in the libel the stricter | Bhould this rule be. The motion will be allowed. I shall certify in the ordinary way, and give judgment for Is and costs. Mr i'itchett asked for the costs of the present application. His Honor: There are no special costs for this application, for I don't know whether it will come under taxation, which will take place in Christchurch.